Jensine Bennett, a Minor,
By and Through Her Parents and Legal Guardians, John & Denise Bennett,
John Bennett, Denise Bennett, Defendants-Counter-Claimants-Appellees.

Docket
No. 97-CV-54-HLM

No. 99-10140

February 16, 2000

Before Birch and Hull, Circuit
Judges, and Hodges*, Senior District Judge. *Honorable Wm. Terrell Hodges,
Senior U.S. District Judge for the Middle District of Florida, sitting
by designation.

The opinion of the court was
delivered by: Hodges, Senior District Judge

Appeals from the United
States District Court for the Northern District of Georgia.

This appeal involves the individuals
with Disabilities Education Act (the IDEA), 20 USC § 1440 et seq.
1 The court is required to interpret one of the provisions of the Act
that has been the subject of attention by several other circuits, but
not this one.

The stated purpose of the
IDEA is to ensure that all children with disabilities have available
to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs.
20 USC § 1400(d)(1)(A). To effectuate that purpose federal funds
are made available to state and local educational entities 2 which
are required through an evaluation process to identify children with
disabilities 3 and to develop for each disabled child an annual
individualized education program or IEP.4 If the parents of a
disabled child are dissatisfied with their child's IEP, the statute
requires the educational agency to afford them an impartial due process
hearing.5

Any party aggrieved by the
result of the administrative proceedings in the state system has the
right, under § 1415(I)(2), to bring a civil action in the district
court, and

In any action brought under
this paragraph, the court - -

(I) shall receive the records
of the administrative proceedings;

(ii) shall hear additional evidence
at the request of a party; and
(iii)basing its decision on the preponderance of the evidence, shall
grant such relief as the court determines is appropriate.

The Walker County School District was aggrieved
by the result of administrative proceedings initiated under the Act
by the parents of Jensine Bennett. The Administrative Law Judge required
the School District to reimburse the Bennetts for the cost of Jensine's
private schooling during the 1995-96 school year. The School District
then brought this action in the district court under § 1415(I)(2)
of the Act seeking review and reversal of that administrative decision.
Invoking the statutory mandate that the court "shall hear additional
evidence at the request of a party," the School District proposed that
the district court hear a substantial volume of testimonial and documentary
evidence in addition to the record of the administrative proceedings
developed in the state system. The district court refused to receive
most of that evidence and, acting on the existing record, proceeded
to affirm the administrative decision. This appeal followed.

Two issues are presented.
First is the question whether the district court erred in refusing to
receive and consider the evidence the School District wished to offer
in addition to the record of the administrative proceedings.6
The second issue is whether the district court erred in its judgment
on the merits affirming the decision of the Administrative Law Judge.7

We affirm the district court
in both respects and conclude that we need to discuss only the evidentiary
question as an issue of first impression in this circuit.

I.

Jensine Bennett was born on
September 15, 1988 and was eight years old when this suit was brought
in March, 1997. She was identified as an autistic child in 1991 when
she was three years old. Jensine and her parents lived at the time,
and still live, in Walker County, Georgia. The Walker County School
District determined that Jensine, because of her autism, was a child
with a disability and was qualified for special educational services
under the IDEA. An individualized educational program (IEP) was prepared
and implemented for her without formal dispute during Jensine's preschool
years, 1991-92 through 1994-95.

In her kindergarten class
during the 1994-95 school year, Jensine sporadically engaged in self
abusive acts, experienced other episodes of emotional outbursts, and
lacked focus on classroom tasks. In the spring of 1995 the School District
prepared a proposed IEP for Jensine with respect to the 1995-96 school
year. Meetings were held in June and August, 1995, but the proposed
IEP was rejected by the Bennetts because, in their view, among other
things, it did not provide an extended program during the summer months,
and did not afford occupational therapy services or sufficient one-on-one
classroom assistance to cope with Jensine's autistic frustration. The
Bennetts thus declined the School District's 1995-96 IEP, withdrew Jensine
from the District's school system, enrolled her in a private school
for autistic children, and gave notice to the District that they intended
to seek reimbursement of the costs of that private schooling.8

In July, 1996, the Bennetts
requested a due process hearing under the IDEA to press their claim
for reimbursement of the expense of Jensine's education during the 1995-96
school year.9 This placed in issue whether the School District's
proposed IEP for Jensine during that year was sufficient to provide
her a "free appropriate public education" as required by the Act, §
1400(d)(1)(A).10

The Administrative Law Judge
assigned to hear the case under Georgia's statutory scheme held a two
day hearing in December, 1996. Extensive documentary evidence was presented
and the testimony of both lay and expert witnesses was heard. The ALJ
issued his decision in February, 1997. He found, as contended by the
Bennetts, that the 1995- 96 IEP prepared for Jensine by the School District
did not comply with the IDEA as interpreted by the Supreme Court in
Rowley and did not fulfill Jensine's right to a free appropriate
public education. Specifically, the IEP was found to be deficient because
it failed to provide (1) behavior management; (2) occupational therapy;
(3) extended services for twelve months; and (4) communication aids.
The Bennetts were therefore awarded the costs of Jensine's private school
education for the 1995-96 school year.

II.

In the district court the
School District moved for an evidentiary hearing to present "additional
evidence." The court required a proffer of the evidence the School District
wished to present. The School District responded by listing the names
of nineteen witnesses (whose testimony was variously offered through
the means of personal appearance, depositions or affidavits), plus three
categories of tangible or documentary evidence. The district court then
reviewed each item of the proffer, separately and individually. The
court found that five of the witnesses had already testified to the
same general subject matter at the administrative hearing, and that
the proposed testimony of several of the remaining witnesses was already
in the record in the form of their written reports or the testimony
of other witnesses who had described their findings, so that, in either
case, the proposed testimony before the district court would be cumulative.
In two instances the court found the proffered testimony to be irrelevant.
The court also found that all of the proffered witnesses who had not
already testified were available at the time of the administrative hearing;
that no explanation was given for not calling them at that time; and
that permitting them to be called in the district court would raise
the dual concerns of unfairly permitting the parties to reserve their
best evidence for trial while essentially converting an administrative
review proceeding into a trial de novo. Thus, with two minor exceptions,
the district court concluded that the admission of any of the additional
evidence in the judicial review proceedings would not only be cumulative
but would undercut or unduly minimize the statutory role of the administrative
process thereby resulting in an unnecessary expenditure of judicial
resources. In the end, therefore, the district court excluded all of
the School District's proffered evidence except for a portion of the
deposition testimony of one witness and some additional documentary
evidence.

III.

Ordinarily, one expects judicial
review of an administrative decision to be limited to the record before
the administrative body, and for the court to be required to affirm
if substantial evidence in the record supports the administrative determination.
See Capistrano Unified School District v. Wartenburg, 59 F.3d
884, 891 (9th Cir. 1994).

But the IDEA provision for
judicial review has been described as "puzzling" (id. at 898) and "somewhat
confusing." Jefferson County Board of Education v. Alabama Department
of Education, 853 F.2d 853, 856 (11th Cir. 1988), because it differs
from the norm in a way that produces three distinct issues: (1) How
much deference, if any, should be given to the administrative decision
if additional evidence may be taken and the standard to be applied is
the preponderance of the evidence? (2) What standard should be applied
in deciding what "additional" evidence, if any, should be admitted in
the district court proceeding? And (3) What is the appropriate procedural
mechanism to be implemented in the district court in bringing the case
before the court for a final decision?11

The first of these issues
was the focus of the Supreme Court's decision in Board of Education
v. Rowley, 458 U.S. 176, 102 S.Ct. 3034 (1982), and has since received
the attention of this Court in Jefferson County Board of Education
v. Alabama Department of Education, 853 F.2d 853 (11th Cir. 1988),
and Doe v. Alabama Department of Education, 915 F.2d 651 (11th
Cir. 1990). Essentially, the law is established by Rowley that
the administrative decision in an IDEA case is entitled to due weight
and the court must be careful not to substitute its judgment for that
of the state educational authorities. Still, under Jefferson County
Board of Education and Doe, the extent of the deference to
be given to the administrative decision is left to the sound discretion
of the district court which must consider the administrative findings
but is free to accept or reject them.

It is the second of these
issues that must now be decided in resolving this appeal. The leading
decision on point is the opinion of the First Circuit in Town of
Burlington v. Department of Education, 736 F.2d 773, 790-791 (1st
Cir. 1984), aff'd., 471 U.S. 359, 105 S.Ct. 1996 (1985). The Court held:

We believe that the key to
the review authorized by the Act lies in the additional evidence clause.
We construe `additional' in the ordinary sense of the word, Perrin
v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d
199 (1980), to mean supplemental. Thus construed, this clause does not
authorize witnesses at trial to repeat or embellish their prior administrative
hearing testimony; this would be entirely inconsistent with the usual
meaning of `additional.' We are fortified in this interpretation because
it structurally assists in giving due weight to the administrative proceeding,
as Rowley requires. Rowley 458 U.S. at 206, 102 S.Ct.
at 3051.

A trial court must make an
independent ruling based on the preponderance of the evidence, but the
Act contemplates that the source of the evidence generally will be the
administrative hearing record, with some supplementation at trial. The
reasons for supplementation will vary; they might include gaps in the
administrative transcript owing to mechanical failure, unavailability
of a witness, an improper exclusion of evidence by the administrative
agency, and evidence concerning relevant events occurring subsequent
to the administrative hearing. The starting point for determining what
additional evidence should be received, however, is the record of the
administrative proceeding.

We decline to adopt the rule
urged by defendants that the appropriate construction is to disallow
testimony from all who did, or could have, testified before the administrative
hearing. We believe that, although an appropriate limit in many cases,
a rigid rule to this effect would unduly limit a court's discretion
and constrict its ability to form the independent judgment Congress
expressly directed.

The determination of what
is 'additional' evidence must be left to the discretion of the trial
court which must be careful not to allow such evidence to change the
character of the hearing from one of review to a trial de novo. A practical
approach, we believe, is that an administrative hearing witness is rebuttably
presumed to be foreclosed from testifying at trial. A motion may then
be made to allow such a witness to testify within specified limits stating
the justification for the testimony. In ruling on motions for witnesses
to testify, a court should weigh heavily the important concerns of not
allowing a party to undercut the statutory role of administrative expertise,
the unfairness involved in one party's reserving its best evidence for
trial, the reason the witness did not testify at the administrative
hearing, and the conservation of judicial resources. The Court should
look with a critical eye on a claim, such as made here, that the credibility
of a witness is a central issue. The claim of credibility should not
be an `open sesame' for additional evidence. Such an approach followed
by a pretrial order that identifies who may testify and limits the scope
of the testimony will enable the court to avoid a trial de novo. (internal
citations omitted)

We agree with this well reasoned
resolution of the issue by the First Circuit and now align this court
with the Seventh and Ninth Circuits in adopting the same holding.12
See Monticello School District v. George L., 102 F.3d 895, 901
(7th Cir. 1996), and Ojai Unified School District v. Jackson,
4 F.3d 1467, 1473 and n.7 (9th Cir. 1993), cert. denied, 513 U.S. 825,
115 S.Ct. 90, 130 L.Ed.2d 41 (1994). See also Susan N. v. Wilson
School District, 70 F.3d 751, 759-60 (3d Cir. 1995), and Independent
School District No. 283 v. S.D., 88 F.3d 556, 560 (8th Cir. 1996),
in which the Third and the Eighth Circuits take a restrictive approach
to the issue without expressly adopting the rule of Town of Burlington.

The only criticism of the
Town of Burlington holding, which we adopt today, comes from
the Sixth Circuit in Metropolitan Government of Nashville and Davidson
County v. Cook, 915 F.2d 232 (6th Cir. 1990). The court there declined
to approve the First Circuit's definition of "additional" to mean "supplemental"
evidence; but the ultimate holding in Cook left the admission or exclusion
of evidence in an IDEA proceeding to the sound discretion of the district
court so that the difference between the First and Sixth Circuits on
this point would seem to be more semantical than substantive. See id.
at 234-35.

IV.

Applying our construction
of the statute to the evidentiary rulings made by the district court,
we have no hesitancy in concluding that the court acted well within
its discretion, and for the reasons it gave, in admitting and excluding
the evidence proffered to it by the School District. We also approve
the procedure followed by the district court in requiring a detailed
proffer from the proponent of the additional evidence so that an appropriate
determination could be made concerning its admissibility under the statute
as we have construed it.

Finally, on the merits, we
conclude that the district court did not err in its decision that the
School District is required to reimburse the Bennetts for the costs
of educating Jensine at the Orange Grove Center during the 1995-96 school
year.

The judgment of the district
court is in all respects AFFIRMED

Footnotes

1 The Act was substantially
revised and reorganized in 1997 by Pub. L. 105-17, June 4, 1997, 111
Stat. 37. However, the provisions pertinent to this appeal were not
changed. This opinion will therefore cite the statute in its present
form. 20 USC § 1440 et seq.

7 To the extent the
district court found, as did the ALJ, that the 1995-96 IEP developed
for Jensine failed to comply with the Act, the issue presents a mixed
question of law and fact subject to de novo review. JSK v. Hendry
County School Board, 941 F.2d 1563, 1571 (11th Cir. 1991). The district
court's specific findings of fact are reviewed for clear error. See
e.g., Jefferson County Board of Education v. Breen, 853 F.2d
853, 857 (11th Cir. 1998), reh'g denied 864 F.2d 795 (11th Cir. Dec.
15, 1998).

8 This court has recognized
that reimbursement is an available remedy when the public school IEP
is found to be statutorily insufficient and the private schooling chosen
by the parents of a disabled child is found to be appropriate. See e.g.,
Jefferson County Board of Education, 853 F.2d at 857.

9 The ALJ and the district
court found that there was no applicable period of limitations and no
laches on the part of the Bennetts in asking for the due process hearing
some eleven months after their rejection of the 1995-96 IEP. No issue
concerning that conclusion is presented or decided on this appeal.

10 This court has previously
held, following Board of Education v. Rowley, 458 U.S. 176, 102
S.Ct. 3034, 73 L.Ed.2d 690 (1982) and Todd D. v. Andrews, 933
F.2d 1576, reh'g denied, 943 F.2d 1316 (11th Cir. 1991), that each child
and his or her IEP must be examined individually in determining whether
the child has been provided "a basic floor of opportunity" that affords
"some" educational benefit. The outcome need not maximize the child's
education; adequacy must be determined on a case by case basis in the
light of the child's individual needs. Board of Education of the
Hendrick Hudson Central School District, Westchester County v. Rowley,
458 U.S. 176, 198, 203, 204, n.26, 102 S.Ct. 3034, 3046, 3049 and n.26,
73 L.Ed.2d 690 (1982).

11 Both the Sixth and
the Ninth Circuits have noted that a motion for summary judgment under
Federal Rule of Civil Procedure 56 may not be an appropriate procedural
device for triggering a district court decision because the district
court in reviewing the administrative record, whether additional evidence
is taken or not, must weigh and decide disputed issues of fact, an improper
exercise under Rule 56. Compare Capistrano, 59 F.3d at 891-92
and Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384,
387 n.2 (Th Cir. 1998). Though the point seems arcane, it could be important
in its influence upon the choice of the correct standard of review on
appeal. The issue is not presented by this appeal and will be left for
another day.

12 It should also be noted
that the enumeration of factors given by the First Circuit in Town
of Burlington as possible reasons for supplementation of the evidence
is a non-exhaustive list. The availability or unavailability of discovery
procedures in the state administrative system, for example, might properly
influence the extent to which the district court allows discovery in
the review proceedings before deciding whether to admit or refuse any
proffered evidence. The district court also has broad discretion, in
our view, with respect to the form in which any supplemental evidence
is received, i.e., deposition transcripts or affidavits in lieu of personal
appearance.